To Seal or Not to Seal

July 3, 2019 § Leave a comment

… That is the question. Or was in a recent COA case.

A chancellor had sealed records in a controversial case, and a Jackson-area law firm sought to intervene in the litigation based on its claim that it should have access to certain documents produced in discovery but now kept from it by seal. The chancellor denied the motion to intervene, with the effect that the firm had no basis to access the records, and the law firm appealed.

In Butler Snow and Clark v. Estate of Mayfield, et al., the COA ruled that the chancellor improperly sealed the records.

¶25. “Mississippi law favors public access to public records . . . .” Estate of Cole v. Ferrell, 163 So. 3d 921, 925 (¶18) (Miss. 2012). “Court filings are considered to be public records, unless otherwise exempted by statute.” Id. at (¶15). “The law allows courts to determine when information should be declared confidential or privileged, exempting it from the Public Records Act.” Id. at 929 (¶33).

¶26. As Estate of Cole explains, the Legislature actually requires sealing certain types of records, such as certain youth court records, or confidential financial information. Id. at 924 (¶10). In general, “parties may request that the trial court seal certain documents,” at which point “the trial court may, in its discretion, limit the public’s access to those records.” Id. That discretion in sealing likewise provides us with a deferential standard of review, for in “determining whether the action taken by the court is proper, we review for an abuse of discretion.” Id. at (¶11).

¶27. In analyzing whether to seal a record, the Supreme Court explained that a trial court must “balanc[e] the parties’ competing interests—the public’s right of access versus confidentiality.” Id.; accord Miss. Dep’t of Corr. v. The Roderick & Solange MacArthur Justice Ctr., 220 So. 3d 929, 951 (¶78) (Miss. 2017) (noting the balancing test to weigh the public right of access against the private desire to seal the record from review).

¶28. Recently, the Supreme Court was faced with a sealed divorce file that contained serious allegations of the sexual abuse of underage children. Smith v. Doe, 2016-CA-00875-SCT, 2018 WL 549404 (Miss. Jan. 25, 2018). “Given the allegations raised and evidence presented in this appeal, th[e] Court ha[d] significant public health and safety concerns.” Id. at *5 (¶27). It “therefore remand[ed] the chancellor’s order sealing the court file for the trial court to conduct the balancing test set out in Estate of Cole . . . and determine whether the court file should remain under seal.” Id.

¶29. In this case, there is no indication the chancery court conducted the balancing test in any fashion. The only request to the chancery court was from Mayfield’s family to seal the matter to shield against all public scrutiny. During oral argument, counsel for Mayfield’s family admitted that any need for sealing the record was lessened by the pendency of the federal suit, which injected the allegations back into the public sphere. Despite this admission, the Mayfield family has actively used the seal as a shield against discovery in the federal litigation, to conceal what information it obtained pursuant to the bill of discovery.

¶30. Our review of the record shows that it does not contain confidential information, or indeed any information, that warrants a seal; as set out above, no balancing test was performed prior to sealing. The three-volume record before us primarily contains notices of subpoenas issued, depositions taken, and various other pretrial matters. The record does not contain the responses to the subpoenas duces tecum, deposition transcripts, or other documents obtained in discovery. We therefore reverse and render, unsealing the trial court record. We take no position on whether the information gained in the suit below is discoverable in the federal action, since that will be determined by the magistrate and district court in that pending action.

Lesson here is that the record must reflect that the chancellor conducted the proper balancing test. If you feel that there is an appeal in your case’s future, it would behoove you and your client to ensure that the judge does so and that it is in the record. If you don’t, you might have to explain to your client why the case is headed back to the trial court for a do-over. Clients hate to pay for a do-over, especially one that their lawyer could have avoided.

Oh, and a related point; when the record is sealed in MEC, everybody — and that includes you — is barred from reading anything in the file. Some lawyers came to me and asked me to seal a file, and I did because every attorney in the case agreed. They then discovered to their chagrin that none of the attorneys was receiving copies of pleadings filed and orders entered. They soon scrambled back and urged me to unseal the file, which I did. Better to ask that a particular document be sealed.

Most sealing takes place in domestic cases by agreement. If you don’t have an agreed order, it’s best either to forego sealing or set the matter for hearing and ask the judge to conduct an Estate of Cole balancing test on the record.

A Valuable Resource is Coming Your Way

May 31, 2019 § Leave a comment

Chancery judges have long had a resource not available to practitioners: The Benchbook for Mississippi Chancery Court Judges.

The last printed edition I have consists of 31 chapters on topics ranging from divorce, alimony, probate, property, restraining orders and injunctions, recusal, and everything in between. There are case citations, tables of authority, statutes, and other helpful material. It is updated periodically by the Mississippi Judicial College’s (MJC’s) excellent staff attorneys.

In the past few years the Benchbook has been accessible behind a password-wall at MJC’s web site, rather than in printed form.

The good news for you is that, effective July 1, 2019, the password will no longer be required, and attorneys and others will be able to access this valuable resource. You will have at your fingertips some of the best research you could hope for ready to use in any chancery proceeding.

You will find the Benchbook at the MJC web site under the ‘Publications” tab, or at this link.

PS … there are benchbooks for circuit and county court judges, and even for justice court judges.

 

Five Rookie Faux Pas

April 22, 2019 § 2 Comments

Aside from the fact that much of their attire is shiny new, and their shoes are not (yet) run down and scuffed up, it’s usually easy to spot rookie attorneys by the vexation they spread around them like pixie dust as they make their wake through a hearing. Here are five of the most vexatious:

The Leading Objection.

Attorney 1:  Were you living with your wife when you moved to Kosciusko?

Attorney 2:  Objection; leading.

Now, what did we accomplish in that exchange other than to impress on some observers that Attorney 2 knows the difference between a leading and a non-leading question? Well, one thing it accomplished was to break up the flow of the hearing, which is self-defeating. Another thing it accomplished is to pi$$ off the other attorney, who is likely to retaliate when Attorney 2 goes on direct, which in turn pi$$e$ off the judge who is straining to discern some substance amid this frivolity.

Maybe there is a case out there in which the appellate court reversed because the judge allowed a leading question. If so, it was certainly a jury trial and not a chancery bench trial. But I am not aware of any such case, so keep in mind that your objection is accomplishing nothing to protect your record.

My suggestion is that you save your leading objections for when the other side is drawing blood, like this:

Attorney 1:  Isn’t it true that you could not have possibly admitted to your neighbor your adultery because you weren’t there that day?

Now that’s rightly objectionable, and should by all means draw an objection, which should be sustained. Why? Because it’s really the lawyer testifying, and it goes to the substance of the case.

Moral of the story: Save leading objections to protect your case. Don’t cheapen the objection by whipping it out every time you hear a leading question. We all know that you know what’s leading and what’s not; you don’t need to convince us.

Pleadings are NOT Evidence.

If you want the trial judge to consider a document or the testimony of a witness, you must get that document or oral testimony admitted into evidence. Exhibits to the pleadings and the pleadings themselves are NOT in evidence. They will not be used by the the judge as a basis for her ruling in your case unless and until they are in evidence.

Getting things into evidence does require a command of the rules of evidence. Study them. Know them. Click on the Categories button over there on the right and select “Evidence.” There are all sorts of posts about how to get business records, photos, hearsay, and the kitchen sink into evidence. Know how to do it, and how to authenticate. These are survival tools. You will die in the desert wasteland of litigation without a canteen full of evidence knowledge.

And equally important, keep in mind that only what is in evidence can be considered by the appellate courts (with the exception of offers of proof and documents marked for identification; look those up).

Moral of the story: Get proficient in evidence. It’s to a lawyer what human anatomy is to a doctor. And, if you are one of those characters who managed to be birthed out of the law-school womb into the legal world without having taken evidence, please have the common decency to forewarn your chancellor.

You Can NOT Question a Witness About the Substance of a Document that is not in Evidence.

There are all kinds of legitimate reasons why this is so. The mainmost being that we have no idea whether the information in it is admissible at all. Is it hearsay? Is it authentic? We have no way of knowing unless you lay the proper foundation.

This is a common rookie mistake. It usually draws an objection. When the opposing lawyer is slumbering or inexperienced or merely incompetent and fails to object, I sometimes will stop the questioning lawyer and “gently encourage” him to get the document into evidence before questioning the witness about it. That’s because I don’t want to hear a bunch of inadmissible twaddle that I will have to shake out of my head later when I am writing my opinion.

Are you confused about how to get that document into evidence? Well, not meaning to brag, but there is a helpful post at this link on how to get a document into evidence, step by step.

Moral of the story: Follow the process, step-by-step, to get that document into evidence. If it’s one that you anticipate will draw objections, be prepared to meet them by studying the applicable rules in advance. I am sometimes brought near to grateful tears when I see a lawyer in action who has actually studied the rules.

And Don’t Forget to Offer the Document into Evidence.

It happens from time to time. The lawyer lays the document before the witness, has him identify it, and then launches off into some more breathtaking realm of inquiry. After an hour or so of exhilarating rabbit hunting, the young Perry Mason confidently slaps his sheaf of notes down on the table and proclaims, “Tender the witness.” The document is still sitting there before the witness, unadmitted into evidence. Pity. It might have made the difference in the case.

Moral of the story: All those preliminary, foundational steps to admission are for naught if you don’t ask the court to admit the document into evidence.

Object When You Have to!

Don’t take my caveat above against leading objections to mean that you should never object or that you should curtail your objections. Object when it makes a difference.

Let me repeat that more loudly: OBJECT WHEN IT MAKES A DIFFERENCE!

I have seen lawyers sit there and let the other side get rank hearsay in. I have seen documents full of hearsay and other objectionable material pass through with a nod and “no objection.” If it’s hearsay, object. If the document is unauthenticated, object. If it’s completely irrelevant, object. And so on.

One baffling non-objection I have seen lately is to the question, “How many times have you been arrested?” Look at MRE 609. Arrests don’t mean anything. Anyone can be arrested for anything. I can have you arrested for practically nothing (okay, I will have to file a false affidavit, which will get me kicked off the bench, which I won’t do, but there are plenty of people who do file false affidavits out of revenge, or spite, or for no good reason at all). It’s the conviction that counts, and there are limitations on that. Read the rule.

The judge is not a mushroom to be buried in excrement from which wisdom is expected to sprout.

Morel of the story: Object when it makes a difference, and you will be more effective and make a more effective case. BTW … a little fungus humor never hurt anyone.

Blueprint for Proving Fraud on the Court

March 20, 2019 § 2 Comments

If you will type “fraud on the court” in that Search box over there on the right at the top of the page, you will call up some posts I have done on the effect that fraud on the court has on a judgment.

Most fraud-on-the-court situations are pretty clear. Sometimes, though, you have to convince the judge that the behavior about which you are complaining did constitute a fraud on the court even though it appears benign on its face. Your burden of proof is clear and convincing, so you have to make sure the evidence is strong.

In Manning v. Tanner, 594 So.2d 1164, 1167 (Miss. 1992), the MSSC established four factors that the court must find in order to vacate a judgment for fraud on the court:

(1) that the facts constituting the fraud, accident, mistake, or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made;

(2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved;

(3) the facts must not have been known to the injured party at the time of the original decree; and

(4) the ignorance thereof must not have been the result of the want of reasonable care and diligence.

Clearly factor 1 is the most important to the analysis. If the allegedly fraudulent conduct would not have effected the outcome, the relief should not include setting aside the judgment. To illustrate: I set aside an irreconcilable differences divorce once because on a R60 hearing a year later emails were produced in which the parties essentially agreed that the PSA presented to the court was a sham, and that they were actually agreeing to terms that an attorney had told them I would never approve. Had I known of the side deal when I was presented the original judgment I would never have signed it.

Factor 2 mentions pleadings. Remember the requirement of R9(b) that “the circumstances constituting fraud … shall be stated with particularity.” You have to state in your motion what the specific conduct was that you claim was fraudulent. And, again, the conduct must be proven by clear and convincing evidence.

If your client knew, or should have known by reasonable care and diligence, of the fraud, then the court should not set aside the judgment. That’s Factors 3 and 4.

In deciding whether to set aside a judgment for fraud on the court, the chancellor must keep in mind that “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989). “The mere non[-]disclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Trim v. Trim, 33 So.3d 471, 477-78 (Miss. 2010). “To warrant relief pursuant to Rule 60(b)(1) the movant must prove fraud, misrepresentation or other conduct by clear and convincing evidence.” Hill v. Hill, 942 So.2d 207, 214 (Miss. App. 2006) [My emphasis].

Resource for Interpreters

March 18, 2019 § Leave a comment

When you need an interpreter for court, it’s a critical need, indeed. Without one key testimony might be entirely inaccessible.

The AOC is responsible for training and certifying interpreters. As the AOC website explains:

Many people living in Mississippi readily read, speak, and understand English. There are many others living in Mississippi for whom English is not their primary language and for whom English is not readily understood. For those limited English proficiency (LEP) individuals, understanding and exercising their legal rights may be difficult and could result in the denial of any meaningful access to the justice system.

Court interpreters must possess specialized skills that very few bilingual individuals possess. The Mississippi Administrative Office of Courts (AOC) became a member of the Consortium for Language Access in the Courts of the National Center for State Courts in order to gain access to other professionals in the field of Court interpreting. The Administrative Office of Courts has developed the Mississippi Court Interpreter Credentialing Program, based on model policies promulgated by the Consortium, in order to assist the courts in Mississippi in their endeavor to provide equal access to justice for limited English proficiency individuals. This program will train, certify, and test individuals who wish to serve as interpreters in the courtrooms of Mississippi. The AOC adopted the Code of Ethics for Court Interpreters and the Rules on Standards for Court Interpreters on October 17, 2011.

The AOC court interpreter web site is at this link. Or, you clan click the AOC tab on the Mississippi Judiciary website.

Whom to appoint as interpreter is within the discretion of the trial court. AOC suggests that candidates be considered in this order: (1) Certified, meaning that the person has been found to have the requisite skills, has undergone training in courtroom techniques and ethics, and has been certified; (2) Registered, meaning that the person has applied for certification but has not completed the process; and Non-credentialed, meaning that the person is neither certified nor registered.

A Way to Improve Your Orders Via MEC

February 19, 2019 § 1 Comment

Former Chancery Clerk and now US District Court Clerk Arthur Johnston, sent me the following suggestion:

Another tip for lawyers, esp in chancery, would be to list in proposed orders the motions to be terminated if the proposed order is entered. That helps the clerk and the judge keep a clean docket and makes the motions and other reports true.

For instance:

You filed a motion to compel and opposing counsel filed another motion about discovery. You reach an agreement with her to resolve both motions. In the agreed order you include the statement that “This order disposes of MEC nos. 18 and 24.”

Or, in the temporary order you could include the sentence, “This order disposes of plaintiff’s Motion for Temporary Relief, MEC no. 5, and defendant’s Motion to Grant Temporary Relief, MEC no. 9.”

One advantage of MEC is that everyone involved has access to the docket so you have a ready-made tool online, without having to drop everything and go to the courthouse to drag out the old General Docket Books. The more accurate and informative we make our electronic docket, the better and more useful tool it will be.

Late Filing Requirements in MEC

February 12, 2019 § Leave a comment

It’s a nettlesome thing when all are assembled in the courtroom for hearing at the appointed time, and there is an announcement that one party filed a sheaf of papers at 5 pm the evening before. The filing may have been a pleading, or affidavits in a R56 case, or a counterclaim, or a defense, or supplemental discovery, or whatever. But the bottom line is that the judge, who conscientiously prepares for hearing by reviewing pleadings and other matter scheduled to come before her, has not seen any of it.

This situation is actually addressed in the MEC rules (officially named the Electronic Courts Administrative Procedures) at Section 3.A.10, which reads:

All motions, pleadings, and other papers filed electronically during or within twenty-four hours prior to a trial, hearing, or other proceeding relating to the case in which the filing occurs shall be accompanied by a paper copy of the filing to be distributed to the appropriate chambers by the clerk.

Clearly one can not comply with the letter of the rule if the filing is after the clerk’s office is closed for the day. My advice is to get a copy to the clerk’s office immediately when it opens for business with the request that the clerk deliver it to the judge right away. There will still be chagrin, but the bruise will not be as deep.

Oh, and you will make your judge and staff attorney happy if you will include in your notices of hearing and orders setting hearings the MEC document numbers for all pleadings and motions that will be presented. That goes, too, for respondents and defendants. Notify the court of the document numbers that the court is required to review before taking the bench. It’s more than a simple courtesy; it’s what the judge needs to be prepared. In this district we will not sign an order setting a matter for hearing, and you can not get a setting for a hearing until you provide the MEC document number(s).

Trial in Absentia

February 4, 2019 § Leave a comment

How far is a chancellor required to go in accommodating requests for continuances? It’s a ticklish proposition that requires weighing competing interests, as one may conclude from a recent case.

Malinee Johnson filed for divorce from her husband Daniel in December, 2012, after 14 1/2 years of marriage. She charged Daniel with habitual cruel and inhuman treatment (HCIT). The chancellor entered an agreed order setting the matter for trial on August 5, 2014. Four days in advance of the trial date, Daniel filed a motion for continuance alleging illness. The judge granted the motion, but did assess Malinee’s witness expenses to Daniel.

On November 5, 2014, Daniel’s attorney filed a motion to withdraw, which the court granted on January 12, 2015, nunc pro tunc to August 5, 2014.

Daniel’s replacement attorney entered an appearance on January 22, 2015, and a trial date was set for September, 2015. For some reason the trial was continued again to May 24, 2016.

On May 24, 2016, Daniel’s attorney appeared and announced that his client was in the hospital. The court agreed to the continuance, but pointed out that the case had been continued several times, and that if Daniel failed to appear yet again the trial would proceed in his absence. The judge encouraged the parties to take Daniel’s deposition, presumably to preserve his testimony.

The court set a new trial date by agreed order for November 16, 2016, which was two weeks after the second anniversary of the case’s filing. Yet, on the appointed date, Daniel did not appear. His attorney pled surprise and said that Daniel had not contacted him, but he told the judge that he knew from independent sources that Daniel was in the hospital. The attorney moved to withdraw. The chancellor denied the motion and proceeded with trial in Daniel’s absence. The only witnesses were Malinee’s.

Following hearing the judge granted Malinee a divorce on the ground of HCIT. Daniel appealed claiming error for the chancellor proceeding without him, and further for granting a divorce on HCIT with insufficient proof.

In Johnson v. Johnson, decided January 8, 2019, the COA affirmed. Judge Greenlee wrote the unanimous opinion (McDonald, Lawrence, and McCarty not participating):

¶14. “It is well settled that the decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be reversed unless the decision results in manifest injustice.” In re E.G., 191 So. 3d 763, 772 (¶37) (Miss. Ct. App. 2016) (internal quotation mark omitted). “[T]here is no mechanical test for determining whether a continuance should be granted, and the circumstances of each case must be carefully examined, especially the reasons presented to the trial judge at the time the request is denied.” Harveston v. State, 742 So. 2d 1163, 1169 (¶21) (Miss. Ct. App. 1999).

¶15. Here, Daniel argues that chancery court’s denial of his continuance requires reversal because he was not afforded the opportunity to present a defense. Although the chancery court noted in its final judgment that it declined to continue trial to another date, the record does not show that Daniel’s attorney requested to continue the November 16, 2016 trial. Even assuming Daniel’s attorney did make such a request, we find the chancery court did not err by declining to continue the matter.

¶16. Daniel did not provide the chancery court with any verification of his claim that he was hospitalized, and therefore, the chancery court had only the representation of Daniel’s uninformed and surprised trial counsel. Under these facts, the chancery court did not err by denying to grant a continuance. See Pace [v. Pace], 16 So. 3d [734] at 740 (¶24) (holding the chancery court did not err by failing to grant a continuance to a party that failed to provide verification that he was at the hospital on the day of trial). Daniel forfeited his right to testify when he failed to appear at the trial. Lee v. Lee, 78 So. 3d 326, 329 (¶13) (Miss. 2012). Moreover, Daniel ignored the chancellor’s prior suggestion that he have a deposition available to present in the event of his absence.

¶17. Absent Daniel’s defense, Nikki was still required to prove the alleged ground for divorce. Turner v. Turner, 73 So. 3d 576, 583 (¶30) (Miss. Ct. App. 2011). “If that is done, the chancellor has authority to grant the divorce despite the absence of the defendant.” Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶12) (Miss. Ct. App. 2009). Finding the chancellor did not err by failing to grant a continuance, we proceed to review whether sufficient proof supported the judgment of divorce.

As mentioned in the final paragraph, the court went on to affirm on the issue of granting the divorce.

If you don’t provide “verification” (to use the COA’s term) that your client is legitimately unavailable, you won’t have much to argue on appeal. Documentation in the form of a doctor’s affidavit or medical record affidavit would meet the requirement of verification, in my opinion. You may support your position with an affidavit per MRCP 43(e), unless the court directs oral testimony or depositions. Although you are an officer of the court, the chancellor may not consider your “uninformed and surprised” announcement to be verification enough.

 

 

Affidavits in Chancery

October 10, 2018 § 4 Comments

An affidavit is a sworn statement. It must include an oath. You can read about the distinction between an oath and an acknowledgment at this link. A document purporting to do the work of an affidavit that bears an authentication instead of an affidavit is void for that purpose.

There are several affidavits that we use routinely in chancery:

  • Affidavit of known creditors. This affidavit is required by MCA § 93-7-145(2) to be filed before publication of notice to creditors. The statute reads, “The executor or administrator shall file with the clerk of court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail as required in subsection (1) of this section to all persons so identified. Upon filing such affidavit … ” it is the duty of the fiduciary to publish notice [My emphasis]. Our courts have held that an affidavit filed after publication is a nullity.
  • Affidavit of unknown heirs. Before publishing process for unknown heirs in an action to determine heirship, one must file an affidavit that “the names of such heirs are unknown,” per MRCP 4(c)(4)(D), and it must also state per MRCP 4(c)(4)(A) that the post office address is unknown to the petitioner “after diligent inquiry.” These are key ingredients, and failure to follow the rules will mean that you don’t have good process. The affidavit must be made by the petitioner unless certain specific language is used as spelled out in the rule.
  • Affidavit of diligent inquiry for publication process. Before you can publish process for a non-resident or a person not to be found in the state per MRCP 4(c)(4)(A), there must be an affidavit filed with the clerk stating either that the person or persons are non-residents or are not to be found in the state after diligent inquiry. If the post office address is unknown, publication proceeds. If a post office address is known, you must include it in your publication and take the additional step of having the clerk mail a copy of the summons and pleading to that address by regular first-class mail, and the clerk must make a notation on the docket to that effect. The affidavit must be made by the petitioner unless the specific language required in the rule is applied.
  • Affidavits in support of and in opposition to summary judgment. Rule 56 says that, “When a motion for summary judgment is made and supported [by affidavits] as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise as provided in this rule. must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
  • Affidavit of non-collusion. MCA § 93-5-7, states that “(7) in all cases, except complaints seeking a divorce on the ground of irreconcilable differences, the complaint must be accompanied with an affidavit of the plaintiff that it is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the complaint are true as stated.”
  • UCCJEA affidavit. In any case involving custody, each party is required to file an affidavit spelling out the information required in MCA § 93-27-209, and the duty to provide the information to the court is a continuing one, meaning that the affidavit must be updated as circumstances change or as newly discovered information becomes known.
  • Affidavits on motions. MRCP 43(e) states that, “When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” Note that the rule applies only to motions, and not to hearings on pleadings that are on the merits seeking a final judgment. Rule 7 describes the difference between a pleading and a motion.
  • Sworn pleadings in probate and fiduciary matters. Uniform Chancery Court Rule 6.13 specifically states in part that, “Every pleading, including accounts and reports, filed by a fiduciary shall be personally signed and sworn to by him.” I take that to mean that every document filed by your fiduciary shall be sworn, thus making it the equivalent of an affidavit. MCA § 93-13-38(1) reads, “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in a guardianship of the person and estate.” MCA § 93-13-259 says that, ” … all laws relative to the guardianship of a minor shall be applicable to a conservator.”

All Medical is not Major

September 5, 2018 § Leave a comment

I’ve seen a few agreed judgments and PSA’s lately that have provisions along these lines:

“[Father] shall maintain major medical, optical, and dental insurance covering the minor child … “

When I inquire, I am told that what the parties intended was actually a standard health-insurance policy along with the optical and dental insurance.

There’s a huge difference between a “major medical policy” and a “health insurance” or “medical insurance” policy.

The term “major medical” is a term of art in the insurance industry to specify insurance designed to cover medical expenses due to severe or prolonged illness by paying all or most of the bills above a set amount. Many major medical policies are cheaper than a regular health or medical policy. They are designed to kick in over and above what regular health and medical insurance covers.

So a major medical policy would kick in, for example, after your health insurance has paid out, say, $50,000 for cancer treatment, and only then would major medical start paying up to some contracted limit.

A health or medical insurance policy, by contrast, pays a percentage (usually 80%) of covered medical, hospital and surgical expenses. It is not limited to severe or prolonged illness, and there is no threshold coverage amount other than a deductible or co-pays.

Remember that the judge is bound by the language you use in that agreed judgment or PSA. If it says “major medical,” it doesn’t matter what the parties thought they were getting; they are bound by the terms they used.

Consider what could happen if Junior breaks his arm and spends the night in the hospital with only a major medical policy in force. The bill is $8,000. But the major medical policy covers only catastrophic illness, such as cancer, and only after the expenses are in excess of $20,000. Problem? You betcha.

And don’t expect any relief from the judge. That’s what the parties agreed to get.

Be careful with your terminology. Your client will have to live with it.

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